exv10w1







	 	 	 	 	 



Exhibit 10.1




Mobile Mini, Inc.

2006 Equity Incentive Plan




[As amended and approved by stockholders at 2008 Annual Meeting]




ARTICLE 1

ESTABLISHMENT, PURPOSE, AND DURATION





     1.1 Establishment. Mobile Mini, Inc., a Delaware corporation (the “Company”),
establishes an equity incentive compensation plan to be known as the 2006 Equity Incentive Plan
(the “Plan”), as set forth in this document.



     The Plan permits the grant of Cash-Based Awards, Nonqualified Options, Incentive Options,
Stock Appreciation Rights (“SARs”), Common Stock, Restricted Stock, Restricted Stock Units,
Performance Stock, Performance Units, and Other Stock-Based Awards.



     The Plan shall become effective upon adoption by the Board on February 22, 2006 (the
“Effective Date”), subject, however, to its further approval by the shareholders of the Company on
or before February 22, 2007, and shall remain in effect as provided in Section 1.3 hereof.



     1.2 Purpose of the Plan. The purpose of the Plan is to provide a means whereby
Employees and Directors develop a sense of proprietorship and personal involvement in the
development and financial success of the Company, and to encourage them to devote their best
efforts to the business of the Company, thereby advancing the interests of the Company and its
shareholders. A further purpose of the Plan is to provide a means through which the Company may
attract able individuals to become Employees or serve as Directors, and to provide a means whereby
those individuals upon whom the responsibilities of the successful administration and management of
the Company are of importance, can acquire and maintain stock ownership, thereby strengthening
their concern for the welfare of the Company. Options granted under the Plan may be Incentive
Stock Options within the meaning of Section 422 of the Internal Revenue Code (the “Code”) or
nonstatutory stock options, as determined by the Committee at the time of grant.



     1.3 Duration of the Plan. Unless sooner terminated as provided herein, the Plan shall
terminate ten (10) years from the Effective Date. After the Plan is terminated, no Awards may be
granted but Awards previously granted shall remain outstanding in accordance with their applicable
terms and conditions and the Plan’s terms and conditions. Notwithstanding the foregoing, no
Incentive Options may be granted more than ten (10) years after the earlier of (a) adoption of the
Plan by the Board, and (b) the Effective Date.



ARTICLE 2

DEFINITIONS




     Whenever used in the Plan, the following terms shall have the meanings set forth below, and
when the meaning is intended, the initial letter of the word shall be capitalized.



     2.1 “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.



 









 





     2.2 “Annual Award Limit” or “Annual Award Limits” have the meaning set forth in
Section 4.1.



     2.3 “Award” means, individually or collectively, a grant under this Plan of Cash-Based
Awards, Nonqualified Options, Incentive Options, SARs, Common Stock, Restricted Stock, Restricted
Stock Units, Performance Stock, Performance Units, or Other Stock-Based Awards, in each case
subject to the terms of this Plan.



     2.4 “Award Agreement” means either (i) a written agreement entered into by the Company
and a Participant setting forth the terms and provisions applicable to an Award granted under this
Plan, or (ii) a written statement issued by the Company to a Participant describing the terms and
provisions of such Award.



     2.5 “Beneficial Owner” or “Beneficial Ownership” shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and Regulations under the Exchange Act.



     2.6 “Board” or “Board of Directors” means the Board of Directors of the
Company.



     2.7 “Cash-Based Award” means an Award granted to a Participant as described in
Article 10.



     2.8 “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time.



     2.9 “Committee” means the committee designated by the Board to administer this Plan.
The members of the Committee shall be appointed from time to time by and shall serve at the
discretion of the Board and, unless otherwise determined by the Board, the Committee shall consist
of no fewer than two directors, each of whom is (i) a “Non-Employee Director” within the meaning of
Rule 16b-3 (or any successor rule) of the Exchange Act, (ii) an “outside director” within the
meaning of Section 162(m) of the Code, and (iii) an “independent director” for purposes of the
rules and regulations of the Nasdaq Stock Market, Inc. (including any successors, “NASDAQ”).



     2.10 “Company” means Mobile Mini, Inc., a Delaware corporation, and any successor
thereto as provided in Article 19 herein.



     2.11 “Common Stock” or “Stock” shall mean the Company’s common stock, par
value $.01 per share.



     2.12 “Covered Employee” means a Participant who is a “covered employee,” as defined in
Code Section 162(m) and the Treasury Regulations promulgated under Code Section 162(m), or any
successor statute.



     2.13 “Director” means any individual who is a member of the Board of Directors of the
Company.



     2.14 “Effective Date” has the meaning set forth in Section 1.1.



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     2.15 “Employee” means any employee of the Company, its Affiliates, and/or its
Subsidiaries.



     2.16 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor act thereto.



     2.17 “Fair Market Value” or “FMV” means a price that is based on the opening,
closing, actual, high, low, or average selling prices of the Common Stock reported on the NASDAQ or
other established stock exchange (or exchanges) on the applicable date, the preceding trading day,
the next succeeding trading day, or an average of trading days, as determined by the Committee in
its discretion. Unless the Committee determines otherwise, if the Common Stock is quoted or traded
on the Nasdaq Stock Market, Inc.’s National Market System (or a successor thereto) at the time a
determination of its Fair Market Value is required to be made hereunder, its Fair Market Value
shall be deemed to be the closing price of the Common Stock as reported by the Nasdaq Stock Market
on the date of determination. In the event the Common Stock is not publicly traded at the time a
determination of their Fair Market Value is required to be made hereunder, the determination of
their Fair Market Value shall be made by the Committee in such manner as it deems appropriate.
Such definition(s) of FMV shall be specified in each Award Agreement and may differ depending on
whether FMV is in reference to the grant, exercise, vesting, settlement, or payout of an Award.



     2.18 “Full Value Award” means an Award other than in the form of an ISO, NQSO, or SAR,
and which is settled by the issuance of Stock.



     2.19 “Freestanding SAR” means an SAR that is granted independently of any Options, as
described in Article 7.



     2.20 “Grant Price” means the price established at the time of grant of a SAR pursuant
to Article 7, used to determine whether there is any payment due upon exercise of the SAR.



     2.21 “Incentive Option” or “ISO” means an Option to purchase Stock granted
under Article 6 to an Employee and that is designated as an Incentive Option and that is intended
to meet the requirements of Code Section 422, or any successor provision.



     2.22 “Insider” shall mean an individual who is, on the relevant date, an officer or
Director of the Company, or a more than ten percent (10%) Beneficial Owner of any class of the
Company’s equity securities that is registered pursuant to Section 12 of the Exchange Act, as
determined by the Board in accordance with Section 16 of the Exchange Act.



     2.23 [Deleted in connection with 2007 amendment.]



     2.24 [Deleted in connection with 2007 amendment.]



     2.25 “Nonqualified Option” or “NQSO” means an Option that is not intended to
meet the requirements of Code Section 422 or that otherwise does not meet such requirements.



     2.26 “Option” means an Incentive Option or a Nonqualified Option, as described in
Article 6.



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     2.27 “Option Price” means the price at which Stock may be purchased by a Participant
pursuant to an Option.



     2.28 “Other Stock-Based Award” means an equity-based or equity-related Award not
otherwise described by the terms of this Plan, granted pursuant to Article 10.



     2.29 “Participant” means any eligible individual as set forth in Article 5 to whom an
Award is granted.



     2.30 “Performance-Based Compensation” means compensation under an Award that satisfies
the requirements of Section 162(m) of the Code and the applicable Treasury Regulations thereunder
for certain performance-based compensation paid to Covered Employees.



     2.31 “Performance Measures” means (i) those measures described in Section 11.3 hereof
on which the performance goals are based, or (ii) such other measures that have been approved by
the Company’s shareholders as contemplated by Article 11 of this Plan in order to qualify Awards as
Performance-Based Compensation.



     2.32 “Performance Period” means the period of time during which the performance goals
must be met in order to determine the degree of payout and/or vesting with respect to an Award.



     2.33 “Performance Stock” means an Award granted under Article 9 herein and subject to
the terms of this Plan, denominated in Common Stock, the value of which at the time it is payable
is determined as a function of the extent to which corresponding performance criteria have been
achieved.



     2.34 “Performance Unit” means an Award granted under Article 9 herein and subject to
the terms of this Plan, denominated in units, the value of which at the time it is payable is
determined as a function of the extent to which corresponding performance criteria have been
achieved.



     2.35 “Period of Restriction” means the period when Restricted Stock or Restricted
Stock Units are subject to a substantial risk of forfeiture (based on the passage of time, the
achievement of performance goals, or upon the occurrence of other events as determined by the
Committee, in its discretion), as provided in Article 8.



     2.36 “Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in
Section 13(d) thereof.



     2.37 “Plan” means this 2006 Equity Incentive Plan, as it may be amended or restated.



     2.38 “Plan Year” means the Company’s fiscal year as may be in effect from time to
time. The Company’s current fiscal year is the twelve-month period beginning on January 1st of a
particular year and ending on December 31st of such year.



     2.39 “Restricted Stock” means an Award granted to a Participant pursuant to Article 8.



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     2.40 “Restricted Stock Unit” means an Award granted to a Participant pursuant to
Article 8, except no Shares are actually awarded to the Participant on the date of grant.



     2.41 “Stock Appreciation Right” or “SAR” means an Award, designated as a SAR,
pursuant to the terms of Article 7 herein.



     2.42 “Subsidiary” means any corporation, partnership, limited liability company or
other entity, whether domestic or foreign, in which the Company has or obtains, directly or
indirectly, a proprietary interest.



     2.43 “Tandem SAR” means an SAR that is granted in connection with a related Option
pursuant to Article 7 herein, the exercise of which shall require forfeiture of the right to
purchase Stock under the related Option (and when Stock is purchased under the Option, the Tandem
SAR shall similarly be canceled).



     2.44 “Treasury Regulations” means the regulations promulgated under the Code.



     2.45 “Withholding Taxes” means any federal, state, local or foreign income taxes,
withholding taxes, or employment taxes required to be withheld by law or regulations.



ARTICLE 3

ADMINISTRATION




     3.1 General. The Committee shall be responsible for administering the Plan, subject
to this Article 3 and the other provisions of the Plan. The Committee may employ attorneys,
consultants, accountants, agents, and other individuals, any of whom may be an Employee, and the
Committee, the Company, and its officers and Directors shall be entitled to rely upon the advice,
opinions, or valuations of any such individuals. All actions taken and all interpretations and
determinations made by the Committee shall be final and binding upon the Participants, the Company,
and all other interested individuals.



     3.2 Authority of the Committee. The Committee shall have full and exclusive
discretionary power to interpret the terms and the intent of the Plan and any Award Agreement or
other agreement or document ancillary to or in connection with the Plan, to determine eligibility
for Awards and to adopt such rules, regulations, forms, instruments, and guidelines for
administering the Plan as the Committee may deem necessary or proper. Such authority shall
include, but not be limited to, selecting Award recipients, establishing all Award terms and
conditions, including the terms and conditions set forth in Award Agreements, and, subject to
Article 17, adopting modifications and amendments to the Plan or any Award Agreement, including
without limitation, any that are necessary to comply with the laws of the countries and other
jurisdictions in which the Company, its Affiliates, and/or its Subsidiaries operate.



     3.3 Delegation. The Committee may delegate to one or more of its members or to one or
more officers of the Company, and/or its Subsidiaries and Affiliates or to one or more agents or
advisors such administrative duties or powers as it may deem advisable, and the Committee or any
individual to whom it has delegated duties or powers as aforesaid may employ one or more
individuals to render advice with respect to any responsibility the Committee or such individual
may have under the Plan. The Committee may, by resolution, authorize one or



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more officers of the Company to do one or more of the following on the same basis as can the
Committee: (a) designate Employees to be recipients of Awards and (b) determine the size of any
such Awards; provided, however, (i) the Committee shall not delegate such responsibilities to any
such officer for Awards granted to an Employee that is considered an Insider; (ii) the resolution
providing such authorization sets forth the total number of Awards such officer(s) may grant; and
(iii) the officer(s) shall report periodically to the Committee regarding the nature and scope of
the Awards granted pursuant to the authority delegated. Notwithstanding the foregoing, the
Committee may not delegate to any officer the ability to take any action or make any determination
regarding issues arising out of Code Section 162(m).



     3.4 Authority to Reprice. Other than in connection with a change in the Company’s
capital structure (as described in Section 4.2 of this Plan), neither the Committee nor the Board
shall have the authority to reprice any outstanding Option or SAR without the prior approval of the
Company’s shareholders. “Repricing” means any of the following or any other action that has the
same effect: (i) lowering the exercise price of an Option or the grant price of a SAR after it is
granted; (ii) any other action that is treated as a repricing under generally accepted accounting
principles; or (iii) canceling an Option at a time when its exercise price exceeds the fair market
value of the underlying stock, in exchange for another Option, a Restricted Stock Award or other
equity, unless the cancellation and exchange occurs in connection with a change in the Company’s
capital structure (as described in Section 4.2 of this Plan).



ARTICLE 4

STOCK SUBJECT TO THE PLAN AND MAXIMUM AWARDS




     4.1 Number of Shares of Stock Available for Awards. One Million Two Hundred Thousand
(1,200,000) shares of Stock have been allocated to the Plan and will be reserved to satisfy Awards
under the Plan. This number of shares shall not be adjusted by reason of the two-for-one stock
split by the Board of Directors on February 22, 2006 to be effected in the from of a 100% stock
dividend (the “2006 Stock Split”). The maximum number of shares of Stock subject to Awards which
may be granted during a Plan Year to a single Participant shall be Three Hundred Thousand (300,000)
(the “Annual Award Limit”). The Company may, in its discretion, use shares held in the treasury or
shares acquired in the public market in lieu of authorized but unissued shares. If any Award shall
terminate by expiration, forfeiture, cancellation, or otherwise without the issuance of such Stock,
is settled in cash in lieu of Stock, or is exchanged with the Committee’s permission for Awards not
involving Stock, such Stock subject to the award shall be available again for grant under the Plan.
No fractional shares of Stock may be issued under the Plan. Fractional shares of Stock will be
rounded down to the nearest whole share of Stock.



     4.2 Adjustments in Authorized Stock. In the event of any corporate event or
transaction (including, but not limited to, a change in the Common Stock of the Company or the
capitalization of the Company) such as a merger, consolidation, reorganization, recapitalization,
separation, stock dividend, stock split (excluding the 2006 Stock Split), reverse stock split,
split-up, spin-off, or other distribution of stock or property of the Company, combination of
Common Stock, exchange of Common Stock, dividend in kind, or other like change in capital structure
or distribution (other than normal cash dividends) to shareholders of the Company, or any similar
corporate event or transaction, the Committee, in its sole discretion, in order to prevent dilution



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or enlargement of Participants’ rights under the Plan, shall substitute or adjust, as
applicable, the number and kind of shares of Common Stock that may be issued under the Plan or
under particular forms of Awards, the number and kind of shares of Common Stock subject to
outstanding Awards, the Option Price or Grant Price applicable to outstanding Awards, the Annual
Award Limits, and other value determinations applicable to outstanding Awards.



     The Committee, in its sole discretion, may also make appropriate adjustments in the terms of
any Awards under the Plan to reflect or related to such changes or distributions and to modify any
other terms of outstanding Awards, including modifications of performance goals and changes in the
length of Performance Periods. The determination of the Committee as to the foregoing adjustments,
if any, shall be conclusive and binding on Participants under the Plan.



     Subject to the provisions of Article 17, without affecting the number of shares of Common
Stock reserved or available hereunder, the Committee may authorize the issuance or assumption of
benefits under this Plan in connection with any merger, consolidation, spin-off, split-off,
split-up, acquisition of property or stock, or reorganization (collectively, a “Reorganization”)
upon such terms and conditions as it may deem appropriate, subject to compliance with the ISO rules
under Section 422 of the Code and the provisions of Section 409A of the Code, where applicable.
Without limiting the foregoing, in the event of any Reorganization, the Committee or the Board may
cause any Award outstanding as of the effective date of the Reorganization to be cancelled in
consideration of a cash payment or alternate Award made to the holder of such cancelled Award equal
in value to the fair market value of such cancelled Award.



ARTICLE 5

ELIGIBILITY AND PARTICIPATION




     5.1 Eligibility. Individuals eligible to participate in this Plan include all
Employees and Directors.



     5.2 Actual Participation. Subject to the provisions of the Plan, the Committee may,
from time to time, select from all eligible individuals, those individuals to whom Awards shall be
granted and shall determine, in its sole discretion, the nature of, any and all terms permissible
by law, and the amount of each Award.



ARTICLE 6

OPTIONS; AWARDS TO NON-EMPLOYEE DIRECTORS




     6.1 Grant of Options. Subject to the terms and provisions of the Plan, Options may be
granted to Participants in such number, and upon such terms, and at any time and from time to time
as shall be determined by the Committee, in its sole discretion; provided that ISOs may be granted
only to eligible Employees of the Company or of any parent or subsidiary corporation (as permitted
by Section 422 of the Code and the Treasury Regulations thereunder).



     6.2 Award Agreement. Each Option grant shall be evidenced by an Award Agreement that
shall specify the Option Price, the maximum duration of the Option, the number of shares of Common
Stock to which the Option pertains, the conditions upon which an Option shall become vested and
exercisable, and such other provisions as the Committee shall determine



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which are not inconsistent with the terms of the Plan. The Award Agreement also shall specify
whether the Option is intended to be an ISO or a NQSO.



     6.3 Option Price. The Option Price for each grant of an Option under this Plan shall
be as determined by the Committee and shall be specified in the Award Agreement. The Option Price
shall be: (i) based on 100% of the FMV of the Stock on the date of grant or (ii) set at a premium
to the FMV of the Stock on the date of grant.



     6.4 Duration of Options. Each Option granted to a Participant shall expire at such
time as the Committee shall determine at the time of grant; provided, however, no Option shall be
exercisable later than the tenth anniversary date of its grant. Notwithstanding the foregoing, for
Options (other than ISOs) granted to Participants outside the United States, the Committee has the
authority to grant Options that have a term greater than ten years.



     6.5 Exercise of Options. Options granted under this Article 6 shall be exercisable at
such times and be subject to such restrictions and conditions as the Committee shall in each
instance approve, which terms and restrictions need not be the same for each grant or for each
Participant.



     6.6 Payment. Options granted under this Article 6 shall be exercised by the delivery
of a notice of exercise to the Company or an agent designated by the Company in a form specified or
accepted by the Committee, or by complying with any alternative procedures which may be authorized
by the Committee, setting forth the number of shares of Common Stock with respect to which the
Option is to be exercised, accompanied by full payment for the Common Stock.



     A condition of the issuance of the Common Stock as to which an Option shall be exercised shall
be the payment of the Option Price. The Option Price of any Option shall be payable to the Company
in full either: (a) in cash or its equivalent; (b) by tendering (either by actual delivery or
attestation) previously acquired Common Stock having an aggregate Fair Market Value at the time of
exercise equal to the Option Price; (c) by a combination of (a) and (b); or (d) any other method
approved or accepted by the Committee in its sole discretion, including, without limitation, if the
Committee so determines, a cashless (broker-assisted) exercise.



     Unless otherwise determined by the Committee, all payments under all of the methods indicated
above shall be paid in United States dollars.



     6.7 Restrictions on Share Transferability. The Committee may impose such restrictions
on any Common Stock acquired pursuant to the exercise of an Option granted under this Article 6 as
it may deem advisable, including, without limitation, minimum holding period requirements,
restrictions under applicable federal securities laws, under the requirements of any stock exchange
or market upon which such Common Stock is then listed and/or traded, or under any blue sky or state
securities laws applicable to such Common Stock.



     6.8 Termination of Employment. Each Participant’s Award Agreement shall set forth the
extent to which the Participant shall have the right to exercise the Option following termination
of the Participant’s employment or provision of services to the Company, its



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Affiliates, and/or its Subsidiaries, as the case may be. Such provisions shall be determined
in the sole discretion of the Committee, shall be included in the Award Agreement entered into with
each Participant, need not be uniform among all Options issued pursuant to this Article 6, and may
reflect distinctions based on the reasons for termination.



     6.9 Transferability of Options.




     (a) Incentive Options. No ISO granted under the Plan may be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws
of descent and distribution. Further, all ISOs granted to a Participant under this
Article 6 shall be exercisable during his lifetime only by such Participant.




     (b) Nonqualified Options. Except as otherwise provided in a Participant’s
Award Agreement or otherwise determined at any time by the Committee, no NQSO granted under
this Article 6 may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution; provided that
the Board or Committee may permit further transferability, on a general or a specific basis,
and may impose conditions and limitations on any permitted transferability. Further, except
as otherwise provided in a Participant’s Award Agreement or otherwise determined at any time
by the Committee, or unless the Board or Committee decides to permit further
transferability, all NQSOs granted to a Participant under this Article 6 shall be
exercisable during his lifetime only by such Participant. With respect to those NQSOs, if
any, that are permitted to be transferred to another individual, references in the Plan to
exercise or payment of the Option Price by the Participant shall be deemed to include, as
determined by the Committee, the Participant’s permitted transferee.



     6.10 Notification of Disqualifying Disposition. If any Participant shall make any
disposition of Common Stock issued pursuant to the exercise of an ISO under the circumstances
described in Section 421(b) of the Code (relating to certain disqualifying dispositions), such
Participant shall notify the Company of such disposition within ten days thereof.



     6.11 Special ISO Rules for 10% Shareholders. If any Participant to whom an ISO is to
be granted is, on the date of grant, the owner of Common Stock (determined using applicable
attribution rules) possessing more than 10% of the total combined voting power of all classes of
equity securities of his or her employer (or of its parent or subsidiary), then the following
special provisions will apply to the ISO granted to that Participant:




     (a) The Option Price per share of Common Stock of the ISO will not be less than 110% of
the Fair Market Value of the Shares underlying such ISO on the date of grant; and




     (b) The ISO will not have a term in excess of 5 years from the date of grant.



     6.12 Automatic Awards to Non-Employee Directors. Effective August 1, 2008 and on each
August 1 thereafter throughout the term of this Plan, each member of the Board who is not an
employee of the Company (a “non-employee director”), shall, without any further action or
determination by the Board or the Committee, be awarded that number of shares of Stock as



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shall be determined by dividing $82,500 (Eighty Two Thousand Five Hundred Dollars) by the Fair
Market Value of the Common Stock on such August 1 (or, if such August 1 is not a trading day on the
NASDAQ or other relevant stock market, then on the next following day which is a trading day on the
NASDAQ or other relevant market). No fraction of a share shall be awarded under this Section 6.12,
and instead in respect of each award the number of shares awarded shall be rounded up or down to
the next whole number, as appropriate (rounding up from 0.50). If, after August 1, 2008, a
non-employee director is first elected to the Board on a date between August 2 and July 31, such
non-employee director shall (unless otherwise determined at the time by the Board) be awarded that
number of shares of Stock as shall be determined by dividing $82,500 by the Fair Market Value of
the Common Stock of the date such non-employee director is first elected to the Board, and then
multiplying the resulting figure by the fraction n/12, where “n” is the number of whole calendar
months remaining after the date of such election and the next July 31 that will occur. An award
under the Section 6.12 shall vest and be non-forfeitable immediately upon the making of the award.
No shares of Stock awarded pursuant to this Section 6.12 shall be sold by the non-employee director
prior to the sixth-month anniversary of the date of the award.



ARTICLE 7

SHARE APPRECIATION RIGHTS




     7.1 Grant of SARs. Subject to the terms and conditions of the Plan, SARs may be
granted to Participants at any time and from time to time as shall be determined by the Committee.
The Committee may grant Freestanding SARs, Tandem SARs, or any combination of these forms of SARs.
Notwithstanding the foregoing, SARs may be granted only if shares of Common Stock are traded on an
established securities market at the date of grant.



     Subject to the terms and conditions of the Plan, the Committee shall have complete discretion
in determining the number of SARs granted to each Participant and, consistent with the provisions
of the Plan, in determining the terms and conditions pertaining to such SARs.



     The Grant Price for each grant of a Freestanding SAR shall be determined by the Committee and
shall be specified in the Award Agreement. The Grant Price shall be: (i) based on 100% of the FMV
of the Common Stock on the date of grant or (ii) set at a premium to the FMV of the Common Stock on
the date of grant.



     7.2 SAR Agreement. Each SAR Award shall be evidenced by an Award Agreement that shall
specify the Grant Price, the term of the SAR, and such other provisions as the Committee shall
determine.



     7.3 Term of SAR. The term of a SAR granted under the Plan shall be determined by the
Committee, in its sole discretion, and except as determined otherwise by the Committee and
specified in the SAR Award Agreement, no SAR shall be exercisable later than the tenth anniversary
date of its grant. Notwithstanding the foregoing, for SARs granted to Participants outside the
United States, the Committee has the authority to grant SARs that have a term greater than ten
years.



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     7.4 Exercise of Freestanding SARs. Freestanding SARs may be exercised upon whatever
terms and conditions the Committee, in its sole discretion, imposes.



     7.5 Exercise of Tandem SARs. Tandem SARs may be exercised for all or part of the
Common Stock subject to the related Option upon the surrender of the right to exercise the
equivalent portion of the related Option. A Tandem SAR may be exercised only with respect to the
Common Stock for which its related Option is then exercisable.



     Notwithstanding any other provision of this Plan to the contrary, with respect to a Tandem SAR
granted in connection with an ISO: (a) the Tandem SAR will expire no later than the expiration of
the underlying ISO; (b) the exercise of the Tandem SAR may not have economic and tax consequences
more favorable than the exercise of the ISO followed by an immediate sale of the underlying share
of Common Stock, and the value of the payout with respect to the Tandem SAR may be for no more than
100% of the excess of the Fair Market Value of the Common Stock subject to the underlying ISO at
the time the Tandem SAR is exercised over the Option Price of the underlying ISO; (c) the Tandem
SAR may be exercised only when the Fair Market Value of the Common Stock subject to the ISO exceeds
the Option Price of the ISO; (d) the Tandem SAR may be exercised only when the underlying ISO is
eligible to be exercised; and (e) the Tandem SAR is transferable only when the underlying ISO is
transferable, and under the same conditions.



     7.6 Payment of SAR Amount. SARs granted under this Plan shall be payable only in
Common Stock. Upon the exercise of a SAR, a Participant shall be entitled to receive from the
Company such number of shares of Common Stock determined by multiplying:




     (a) The excess of the Fair Market Value of the Common Stock on the date of exercise
over the Grant Price; by




     (b) The number of shares of Common Stock with respect to which the SAR is exercised.



     Such product shall then be divided by the Fair Market Value of the Common Stock on the date of
exercise. The resulting number (rounded down to the next whole number) is the number of shares of
Common Stock to be issued to the Participant upon exercise of an SAR.



     7.7 Termination of Employment. Each Award Agreement shall set forth the extent to
which the Participant shall have the right to exercise the SAR following termination of the
Participant’s employment with or provision of services to the Company, its Affiliates, and/or its
Subsidiaries, as the case may be. Such provisions shall be determined in the sole discretion of
the Committee, shall be included in the Award Agreement entered into with Participants, need not be
uniform among all SARs issued pursuant to the Plan, and may reflect distinctions based on the
reasons for termination.



     7.8 Nontransferability of SARs. Except as otherwise provided in a Participant’s Award
Agreement or otherwise determined at any time by the Committee, no SAR granted under the Plan may
be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution. Further, except as otherwise provided in a
Participant’s Award Agreement or otherwise determined at any time by the



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Committee, all SARs granted to a Participant under the Plan shall be exercisable during his
lifetime only by such Participant. With respect to those SARs, if any, that are permitted to be
transferred to another individual, references in the Plan to exercise of the SAR by the Participant
or payment of any amount to the Participant shall be deemed to include, as determined by the
Committee, the Participant’s permitted transferee.



     7.9 Other Restrictions. The Committee shall impose such other conditions and/or
restrictions on any share of Common Stock received upon exercise of a SAR granted pursuant to the
Plan as it may deem advisable or desirable. These restrictions may include, but shall not be
limited to, a requirement that the Participant hold the Common Stock received upon exercise of a
SAR for a specified period of time.



ARTICLE 8

RESTRICTED STOCK AND RESTRICTED STOCK UNITS




     8.1 Grant of Restricted Stock or Restricted Stock Units. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to time, may grant Restricted
Stock and/or Restricted Stock Units to Participants in such amounts as the Committee shall
determine. Restricted Stock Units shall be similar to Restricted Stock except that no shares of
Common Stock are actually awarded to the Participant on the date of grant.



     8.2 Restricted Stock or Restricted Stock Units Agreement. Each Restricted Stock
and/or Restricted Stock Units grant shall be evidenced by an Award Agreement that shall specify the
Period(s) of Restriction, the number of shares of Restricted Stock or the number of Restricted
Stock Units granted, and such other provisions as the Committee shall determine. Notwithstanding
anything in this Article 8 to the contrary, delivery of the Common Stock pursuant to an Award of
Restricted Stock Units (or an Award of Restricted Stock) shall be made no later than
21/2  months after the close of the Company’s first taxable year in which such Common
Stock is no longer subject to a risk of forfeiture (within the meaning of Section 409A of the
Code).



     8.3 Transferability. Except as provided in this Plan or an Award Agreement, the
Restricted Stock and/or Restricted Stock Units granted herein may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of
Restriction established by the Committee and specified in the Award Agreement (and in the case of
Restricted Stock Units until the date of delivery or other payment), or upon earlier satisfaction
of any other conditions, as specified by the Committee, in its sole discretion, and set forth in
the Award Agreement or otherwise at any time by the Committee. All rights with respect to the
Restricted Stock and/or Restricted Stock Units granted to a Participant under the Plan shall be
available during his lifetime only to such Participant, except as otherwise provided in an Award
Agreement or at any time by the Committee.



     8.4 Other Restrictions. The Committee shall impose such other conditions and/or
restrictions on any Restricted Stock or Restricted Stock Unit granted pursuant to the Plan as it
may deem advisable including, without limitation, a requirement that Participants pay a stipulated
purchase price for each Restricted Stock or each Restricted Stock Unit, restrictions based upon the
achievement of specific performance goals, time-based restrictions on vesting



12









 







following the attainment of the performance goals, time-based restrictions, and/or
restrictions under applicable laws or under the requirements of any stock exchange or market upon
which such Common Stock is listed or traded, or holding requirements or sale restrictions placed on
the Common Stock by the Company upon vesting of such Restricted Stock or Restricted Stock Unit.



     To the extent deemed appropriate by the Committee, the Company may retain the certificates
representing Restricted Stock in the Company’s possession until such time as all conditions and/or
restrictions applicable to such Restricted Stock has been satisfied or has lapsed.



     Except as otherwise provided in this Article 8, Restricted Stock covered by each Restricted
Stock Award shall become freely transferable by the Participant after all conditions and
restrictions applicable to such Restricted Stock has been satisfied or has lapsed (including
satisfaction of any applicable tax withholding obligations), and Restricted Stock Units shall be
paid in cash, Common Stock, or a combination of cash and Common Stock as the Committee, in its sole
discretion shall determine.



     8.5 Certificate Legend. In addition to any legends placed on certificates pursuant to
Section 8.4, each certificate representing Restricted Stock granted pursuant to the Plan may bear a
legend such as the following or as otherwise determined by the Committee in its sole discretion:




“The sale or transfer of shares of stock represented by this
certificate, whether voluntary, involuntary, or by operation of law,
is subject to certain restrictions on transfer as set forth in the
Mobile Mini, Inc. 2006 Equity Incentive Plan, and in the associated
Award Agreement. A copy of the Plan and such Award Agreement may be
obtained from Mobile Mini, Inc.”



     8.6 Voting Rights. Unless otherwise determined by the Committee and set forth in a
Participant’s Award Agreement, to the extent permitted or required by law, as determined by the
Committee, Participants holding Restricted Stock granted hereunder may be granted the right to
exercise full voting rights with respect to those shares of Common Stock during the Period of
Restriction. A Participant shall have no voting rights with respect to any Restricted Stock Unit
granted hereunder.



     8.7 Termination of Employment. Each Award Agreement shall set forth the extent to
which the Participant shall have the right to retain Restricted Stock and/or Restricted Stock Units
following termination of the Participant’s employment with or provision of services to the Company,
its Affiliates, and/or its Subsidiaries, as the case may be. Such provisions shall be determined
in the sole discretion of the Committee, shall be included in the Award Agreement entered into with
each Participant, need not be uniform among all Restricted Stock or Restricted Stock Units issued
pursuant to the Plan, and may reflect distinctions based on the reasons for termination.



     8.8 Section 83(b) Election. The Committee may provide in an Award Agreement that the
Award of Restricted Stock is conditioned upon the Participant making or refraining from making an
election with respect to the Award under Section 83(b) of the Code. If a Participant



13









 







makes an election pursuant to Section 83(b) of the Code concerning a Restricted Stock Award,
the Participant shall be required to file promptly a copy of such election with the Company and the
Internal Revenue Service, as well as file such election with the Participant’s federal income tax
return.



ARTICLE 9

PERFORMANCE UNITS/PERFORMANCE STOCK




     9.1 Grant of Performance Units/Performance Stock. Subject to the terms and provisions
of the Plan, the Committee, at any time and from time to time, may grant Performance Units and/or
Performance Stock to Participants in such amounts and upon such terms as the Committee shall
determine.



     9.2 Value of Performance Units/Performance Stock. Each Performance Unit shall have an
initial value that is established by the Committee at the time of grant. Each share of Performance
Stock shall have an initial value equal to the Fair Market Value of a share of Common Stock on the
date of grant. The Committee shall set performance goals in its discretion which, depending on the
extent to which they are met, will determine the value and/or number of Performance
Units/Performance Stock that will be paid out to the Participant.



     9.3 Earning of Performance Units/ Performance Stock. Subject to the terms of this
Plan, after the applicable Performance Period has ended, the holder of Performance Units/
Performance Stock shall be entitled to receive payout of the value and number of Performance Units/
Performance Stock earned by the Participant over the Performance Period, to be determined as a
function of the extent to which the corresponding performance goals have been achieved.



     9.4 Form and Timing of Payment of Performance Units/ Performance Stock. Payment of
earned Performance Units/ Performance Stock shall be as determined by the Committee and as
evidenced in the Award Agreement. Subject to the terms of the Plan, the Committee, in its sole
discretion, may pay earned Performance Units/ Performance Stock in the form of cash or in shares of
Common Stock (or in a combination thereof) equal to the value of the earned Performance Units/
Performance Stock at the close of the applicable Performance Period, or as soon as practicable
after the end of the Performance Period. Any shares of Common Stock may be granted subject to any
restrictions deemed appropriate by the Committee. The determination of the Committee with respect
to the form of payout of such Awards shall be set forth in the Award Agreement pertaining to the
grant of the Award. Notwithstanding anything in this Article 9 to the contrary, delivery of Common
Stock, cash or other property pursuant to an Award of Performance Units/ Performance Stock shall be
made no later than 21/2  months after the close of the Company’s first taxable year in
which delivery of such Common Stock, cash or other property is no longer subject to a risk of
forfeiture (within the meaning of Section 409A of the Code).



     9.5 Termination of Employment. Each Award Agreement shall set forth the extent to
which the Participant shall have the right to retain Performance Units and/or Performance Stock
following termination of the Participant’s employment with or provision of services to the Company,
its Affiliates, and/or its Subsidiaries, as the case may be. Such provisions shall be



14









 







determined in the sole discretion of the Committee, shall be included in the Award Agreement
entered into with each Participant, need not be uniform among all Awards of Performance Units or
Performance Stock issued pursuant to the Plan, and may reflect distinctions based on the reasons
for termination.



     9.6 Nontransferability. Except as otherwise provided in a Participant’s Award
Agreement or otherwise determined at any time by the Committee, Performance Units/ Performance
Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution. Further, except as otherwise
provided in a Participant’s Award Agreement or otherwise determined at any time by the Committee, a
Participant’s rights under the Plan shall be exercisable during his lifetime only by such
Participant.



ARTICLE 10

CASH-BASED AWARDS AND OTHER SHARE-BASED AWARDS




     10.1 Grant of Cash-Based Awards. Subject to the terms and provisions of the Plan, the
Committee, at any time and from time to time, may grant Cash-Based Awards to Participants in such
amounts and upon such terms, including the achievement of specific performance goals, as the
Committee may determine.



     10.2 Other Stock-Based Awards. The Committee may grant other types of equity-based or
equity-related Awards not otherwise described by the terms of this Plan (including the grant or
offer for sale of unrestricted Common Stock) in such amounts and subject to such terms and
conditions, as the Committee shall determine. Such Awards may involve the transfer of actual
shares of Common Stock to Participants, or payment in cash or otherwise of amounts based on the
value of shares of Common Stock and may include, without limitation, Awards designed to comply with
or take advantage of the applicable local laws of jurisdictions other than the United States.



     10.3 Value of Cash-Based and Other Stock-Based Awards. Each Cash-Based Award shall
specify a payment amount or payment range as determined by the Committee. Each Other Stock-Based
Award shall be expressed in terms of shares of Common Stock or units based on shares of Common
Stock, as determined by the Committee. The Committee may establish performance goals in its
discretion. If the Committee exercises its discretion to establish performance goals, the number
and/or value of Cash-Based Awards or Other Stock-Based Awards that will be paid out to the
Participant will depend on the extent to which the performance goals are met.



     10.4 Payment of Cash-Based Awards and Other Share-Based Awards. Payment, if any, with
respect to a Cash-Based Award or an Other Stock-Based Award shall be made in accordance with the
terms of the Award, in cash or Common Stock as the Committee determines. Notwithstanding anything
in this Article 10 to the contrary, delivery of Common Stock, cash or other property pursuant to a
Cash-Based Award or Other Stock-Based Award shall be made no later than 21/2  months
after the close of the Company’s first taxable year in which delivery of such Common Stock, cash or
other property is no longer subject to a risk of forfeiture (within the meaning of Section 409A of
the Code).



15









 





     10.5 Termination of Employment. The Committee shall determine the extent to which the
Participant shall have the right to receive Cash-Based Awards or Other Stock-Based Awards following
termination of the Participant’s employment with or provision of services to the Company, its
Affiliates, and/or its Subsidiaries, as the case may be. Such provisions shall be determined in
the sole discretion of the Committee, such provisions may be included in an Award Agreement entered
into with each Participant, but need not be uniform among all Awards of Cash-Based Awards or Other
Stock-Based Awards issued pursuant to the Plan, and may reflect distinctions based on the reasons
for termination.



     10.6 Nontransferability. Except as otherwise determined by the Committee, neither
Cash-Based Awards nor Other Stock-Based Awards may be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution.
Further, except as otherwise provided by the Committee, a Participant’s rights under the Plan, if
exercisable, shall be exercisable during his lifetime only by such Participant. With respect to
those Cash-Based Awards or Other Stock-Based Awards, if any, that are permitted to be transferred
to another individual, references in the Plan to exercise or payment of such Awards by or to the
Participant shall be deemed to include, as determined by the Committee, the Participant’s permitted
transferee.



ARTICLE 11

PERFORMANCE MEASURES




     11.1 General.




     (a) Certain Awards granted under the Plan may be granted in a manner such that the
Awards qualify as Performance-Based Compensation and thus are exempt from the deduction
limitation imposed by Section 162(m) of the Code. Awards shall only qualify as
Performance-Based Compensation if, among other things, at the time of grant the Committee is
comprised solely of two or more “outside directors” (as such term is used in Section 162(m)
of the Code and the Treasury Regulations thereunder).




     (b) Awards intended to qualify as Performance-Based Compensation may be granted to
Participants who are or may be Covered Employees at any time and from time to time, as shall
be determined by the Committee. The Committee shall have complete discretion in determining
the number, amount and timing of awards granted to each Covered Employee.




     (c) The Committee shall set performance goals at its discretion which, depending on the
extent to which they are met, will determine the number and/or value of Awards intended to
qualify as Performance-Based Compensation that will be paid out to the Covered Employees,
and may attach to such Performance-Based Compensation one or more restrictions.



     11.2 Other Awards. Either the granting or vesting of Awards intended to qualify as
Performance-Based Compensation (other than Options and SARs) granted under the Plan shall be
subject to the achievement of a performance target or targets, as determined by the Committee



16









 







in its sole discretion, based on one or more of the performance measures specified in
Section 11.3 below. With respect to such Performance-Based Compensation:




     (a) the Committee shall establish in writing (x) the objective performance-based goals
applicable to a given period and (y) the individual Covered Employees or class of Covered
Employees to which such performance-based goals apply no later than 90 days after the
commencement of such period (but in no event after 25 percent of such period has elapsed);




     (b) no Performance-Based Compensation shall be payable to or vest with respect to, as
the case may be, any Covered Employee for a given period until the Committee certifies in
writing that the objective performance goals (and any other material terms) applicable to
such period have been satisfied; and




     (c) after the establishment of a performance goal, the Committee shall not revise such
performance goal or increase the amount of compensation payable thereunder (as determined in
accordance with Section 162(m) of the Code) upon the attainment of such performance goal.



     11.3 Performance Measures. Unless and until the Committee proposes for shareholder
vote and the shareholders approve a change in the general Performance Measures set forth in this
Article 11, the performance goals upon which the payment or vesting of an Award to a Covered
Employee that is intended to qualify as Performance-Based Compensation shall be limited to the
following Performance Measures:




     (a) Net earnings or net income (before or after taxes);




     (b) Earnings per share;




     (c) Net sales growth;




     (d) Leasing revenues;




     (e) Internal growth rate;




     (f)  Compound annual growth rate;




     (g) Net operating profit;




     (h) Return measures (including, but not limited to, return on assets, capital, invested
capital, equity, or sales);




     (i)  Cash flow (including, but not limited to, operating cash flow, free cash flow, and
cash flow return on capital);




     (j)  Earnings before or after taxes, interest, depreciation, and/or amortization;




     (k) Gross or operating margins;



17









 






     (l) Productivity ratios; and




     (m) Stock price (including, but not limited to, growth measures and total shareholder
return).



     Any Performance Measure(s) may be used to measure the performance of the Company, Subsidiary,
and/or Affiliate as a whole or any business unit of the Company, Subsidiary, and/or Affiliate or
any combination thereof, as the Committee may deem appropriate, or any of the above Performance
Measures as compared to the performance of a group of peer companies, or published or special index
that the Committee, in its sole discretion, deems appropriate, or the Company may select
Performance Measure (m) above as compared to various stock market indices.



     11.4 Evaluation of Performance. The Committee may provide in any such Award that any
evaluation of performance may include or exclude any of the following events that occurs during a
Performance Period: (a) asset write-downs, (b) litigation or claim judgments or settlements,
(c) the effect of changes in tax laws, accounting principles, or other laws or provisions affecting
reported results, (d) any reorganization and restructuring programs, (e) extraordinary nonrecurring
items as described in Accounting Principles Board Opinion No. 30 and/or in management’s discussion
and analysis of financial condition and results of operations appearing in the Company’s annual
report to shareholders for the applicable year, (f) acquisitions or divestitures, and (g) foreign
exchange gains and losses. To the extent such inclusions or exclusions affect Awards to Covered
Employees, they shall be prescribed in a form that meets the requirements of Code Section 162(m)
for deductibility.



     11.5 Adjustment of Performance-Based Compensation. Awards intended to qualify as
Performance-Based Compensation may not be adjusted upward. The Committee shall retain the
discretion to adjust such Awards downward, either on a formula or discretionary basis or any
combination, as the Committee determines.



     11.6 Committee Discretion. In the event that applicable tax and/or securities laws
change to permit Committee discretion to alter the governing Performance Measures without obtaining
shareholder approval of such changes, the Committee shall have sole discretion to make such changes
without obtaining shareholder approval. In addition, in the event that the Committee determines
that it is advisable to grant Awards that shall not qualify as Performance-Based Compensation, the
Committee may make such grants without satisfying the requirements of Code Section 162(m) and base
vesting on Performance Measures other than those set forth in Section 11.3.



ARTICLE 12




[Article 12 was deleted when the Plan was amended in 2007.]




18









 





ARTICLE 13

DIVIDEND EQUIVALENTS




     Any Participant selected by the Committee may be granted dividend equivalents based on the
dividends declared on shares of Common Stock that are subject to any Award, to be credited as of
dividend payment dates, during the period between the date the Award is granted and the date the
Award is exercised, vests or expires, as determined by the Committee. Such dividend equivalents
shall be converted to cash or additional shares of Common Stock by such formula and at such time
and subject to such limitations as may be determined by the Committee (but subject to the
provisions of Section 409A of the Code, if applicable).



ARTICLE 14

BENEFICIARY DESIGNATION




     Each Participant under the Plan may, from time to time, name any beneficiary or beneficiaries
(who may be named contingently or successively) to whom any benefit under the Plan is to be paid in
case of his death before he receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in a form prescribed by the
Committee, and will be effective only when filed by the Participant in writing with the Company
during the Participant’s lifetime. In the absence of any such designation, benefits remaining
unpaid at the Participant’s death shall be paid to the Participant’s estate.



ARTICLE 15

RIGHTS OF PARTICIPANTS




     15.1 Employment. Nothing in the Plan or an Award Agreement shall interfere with or
limit in any way the right of the Company, its Affiliates, and/or its Subsidiaries, to terminate
any Participant’s employment or service on the Board or to the Company at any time or for any
reason not prohibited by law, nor confer upon any Participant any right to continue his employment
or service as a Director or Third Party Service Provider for any specified period of time.



     Neither an Award nor any benefits arising under this Plan shall constitute an employment
contract with the Company, its Affiliates, and/or its Subsidiaries and, accordingly, subject to
Articles 3 and 17, this Plan and the benefits hereunder may be terminated at any time in the sole
and exclusive discretion of the Committee without giving rise to any liability on the part of the
Company, its Affiliates, and/or its Subsidiaries.



     15.2 Participation. No individual shall have the right to be selected to receive an
Award under this Plan, or, having been so selected, to be selected to receive a future Award.



     15.3 Rights as a Shareholder. Except as otherwise provided herein, a Participant
shall have none of the rights of a shareholder with respect to shares covered of Common Stock by
any Award until the Participant becomes the record holder of such Common Stock.



19









 





ARTICLE 16

CHANGE OF CONTROL




     In addition to the terms and conditions of this Plan, one or more Awards may be subject to the
terms and conditions set forth in a written agreement between the Company and a Participant
providing for different terms or provisions with respect to such Awards upon a “Change of Control”
of the Company (as that term may be defined in such written agreement), including but not limited
to acceleration of benefits, lapsing of restrictions, vesting of benefits and such other terms,
conditions or provisions as may be contained in such written agreement; provided however, that such
written agreement may not increase the maximum amount of such Awards.



ARTICLE 17

AMENDMENT, MODIFICATION, SUSPENSION, AND TERMINATION




     17.1 Amendment, Modification, Suspension, and Termination. Subject to Sections 3.4
and 17.3, the Committee may, at any time and from time to time, alter, amend, modify, suspend, or
terminate the Plan and any Award Agreement in whole or in part. Further, no amendment of the Plan
shall be made without shareholder approval if shareholder approval is required by law, regulation,
or stock exchange rule.



     17.2 Adjustment of Awards upon the Occurrence of Certain Unusual or Nonrecurring
Events. The Committee may make adjustments in the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4.2 hereof) affecting the Company or the financial
statements of the Company or of changes in applicable laws, regulations, or accounting principles,
whenever the Committee determines that such adjustments are appropriate in order to prevent
unintended dilution or enlargement of the benefits or potential benefits intended to be made
available under the Plan. The determination of the Committee as to the foregoing adjustments, if
any, shall be conclusive and binding on Participants under the Plan.



     17.3 Awards Previously Granted. Notwithstanding any other provision of the Plan to
the contrary, and except to the extent necessary to avoid the imposition of additional tax and/or
interest under Section 409A of the Code with respect to Awards that are treated as nonqualified
deferred compensation, no termination, amendment, suspension, or modification of the Plan or an
Award Agreement shall adversely affect in any material way any Award previously granted under the
Plan, without the written consent of the Participant holding such Award.



ARTICLE 18

WITHHOLDING




     The Company shall have the right to withhold from a Participant (or a permitted assignee
thereof), or otherwise require such Participant or assignee to pay, any Withholding Taxes arising
as a result of the grant of any Award, exercise of an Option or SAR, lapse of restrictions with
respect to Restricted Stock or Restricted Stock Units, or any other taxable event occurring
pursuant to this Plan or any Award Agreement. If the Participant (or a permitted assignee thereof)
shall fail to make such tax payments as are required, the Company (or its Affiliates or



20









 







Subsidiaries) shall, to the extent permitted by law, have the right to deduct any such
Withholding Taxes from any payment of any kind otherwise due to such Participant or to take such
other action as may be necessary to satisfy such Withholding Taxes. In satisfaction of the
requirement to pay Withholding Taxes, the Participant (or permitted assignee) may make a written
election which may be accepted or rejected in the discretion of the Committee, (i) to have withheld
a portion of any Common Stock or other payments then issuable to the Participant (or permitted
assignee) pursuant to any Award, or (ii) to tender other shares of Common Stock to the Company
(either by actual delivery or attestation, in the sole discretion of the Committee,
provided that, except as otherwise determined by the Committee, the shares of
Common Stock that are tendered must have been held by the Participant for at least six months prior
to their tender to satisfy the Option Price or have been purchased on the open market), in either
case having an aggregate Fair Market Value equal to the Withholding Taxes.



ARTICLE 19

SUCCESSORS




     All obligations of the Company under the Plan with respect to Awards granted hereunder shall
be binding on any successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all
of the business and/or assets of the Company.



ARTICLE 20

GENERAL PROVISIONS




     20.1 Forfeiture Events.




     (a) The Committee may specify in an Award Agreement that the Participant’s rights,
payments, and benefits with respect to an Award shall be subject to reduction, cancellation,
forfeiture, or recoupment upon the occurrence of certain specified events, in addition to
any otherwise applicable vesting or performance conditions of an Award. Such events may
include, but shall not be limited to, termination of employment for cause, termination of
the Participant’s provision of services to the Company, Affiliate, and/or Subsidiary,
violation of material Company, Affiliate, and/or Subsidiary policies, breach of
noncompetition, confidentiality, or other restrictive covenants that may apply to the
Participant, or other conduct by the Participant that is detrimental to the business or
reputation of the Company, its Affiliates, and/or its Subsidiaries.




     (b) If the Company is required to prepare an accounting restatement due to the material
noncompliance of the Company, as a result of misconduct, with any financial reporting
requirement under the securities laws, if the Participant knowingly or grossly negligently
engaged in the misconduct, or knowingly or grossly negligently failed to prevent the
misconduct, or if the Participant is one of the individuals subject to automatic forfeiture
under Section 304 of the Sarbanes-Oxley Act of 2002, the Participant shall reimburse the
Company the amount of any payment in settlement of an Award earned or accrued during the
twelve-month period following the first public issuance or filing with the United States
Securities and Exchange Commission (whichever just occurred) of the financial document
embodying such financial reporting requirement.



21









 





     20.2 Legend. The certificates for Common Stock may include any legend which the
Committee deems appropriate to reflect any restrictions on transfer of such Common Stock.



     20.3 Gender and Number. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine, the plural shall include the singular,
and the singular shall include the plural.



     20.4 Severability. In the event any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the
Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not
been included.



     20.5 Requirements of Law. The granting of Awards and the issuance of Common Stock
under the Plan shall be subject to all applicable laws, rules, and regulations, and to such
approvals by any governmental agencies or national securities exchanges as may be required.



     20.6 Delivery of Title. The Company shall have no obligation to issue or deliver
evidence of title for shares of Common Stock issued under the Plan prior to:




     (a) Obtaining any approvals from governmental agencies that the Company determines are
necessary or advisable; and




     (b) Completion of any registration or other qualification of the Common Stock under any
applicable national or foreign law or ruling of any governmental body that the Company
determines to be necessary or advisable.



     20.7 Inability to Obtain Authority. The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance and sale of any shares of Common Stock hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such Common Stock as to
which such requisite authority shall not have been obtained.



     20.8 Investment Representations. The Committee may require any individual receiving
Common Stock pursuant to an Award under this Plan to represent and warrant in writing that the
individual is acquiring the Common Stock for investment and without any present intention to sell
or distribute such Common Stock.



     20.9 Employees Based Outside of the United States. Notwithstanding any provision of
the Plan to the contrary, in order to comply with the laws in other countries in which the Company,
its Affiliates, and/or its Subsidiaries operate or have Employees or Directors, the Committee, in
its sole discretion, shall have the power and authority to:




     (a) Determine which Affiliates and Subsidiaries shall be covered by the Plan;




     (b) Determine which Employees or Directors outside the United States are eligible to
participate in the Plan;




     (c) Modify the terms and conditions of any Award granted to Employees or Directors
outside the United States to comply with applicable foreign laws;



22









 






     (d) Establish subplans and modify exercise procedures and other terms and procedures,
to the extent such actions may be necessary or advisable. Any subplans and modifications to
Plan terms and procedures established under this Section 20.9 by the Committee shall be
attached to this Plan document as appendices; and




     (e) Take any action, before or after an Award is made, that it deems advisable to
obtain approval or comply with any necessary local government regulatory exemptions or
approvals.



     Notwithstanding the above, the Committee may not take any actions hereunder, and no Awards
shall be granted, that would violate applicable law.



     20.10 Uncertificated Stock. To the extent that the Plan provides for issuance of
certificates to reflect the transfer of Common Stock, the transfer of such Common Stock may be
affected on a noncertificated basis, to the extent not prohibited by applicable law or the rules of
any stock exchange.



     20.11 Unfunded Plan. Participants shall have no right, title, or interest whatsoever
in or to any investments that the Company, its Subsidiaries, and/or its Affiliates may make to aid
it in meeting its obligations under the Plan. Nothing contained in the Plan, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship between the Company and any Participant, beneficiary, legal representative,
or any other individual. To the extent that any individual acquires a right to receive payments
from the Company, its Subsidiaries, and/or its Affiliates under the Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company, a Subsidiary, or an
Affiliate, as the case may be. All payments to be made hereunder shall be paid from the general
funds of the Company, a Subsidiary, or an Affiliate, as the case may be and no special or separate
fund shall be established and no segregation of assets shall be made to assure payment of such
amounts except as expressly set forth in the Plan.



     20.12 No Fractional Shares. No fractional shares of Common Stock shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, Awards,
or other property shall be issued or paid in lieu of fractional shares of Common Stock or whether
such fractional shares of Common Stock or any rights thereto shall be forfeited or otherwise
eliminated.



     20.13 Retirement and Welfare Plans. Neither Awards made under the Plan nor shares of
Common Stock or cash paid pursuant to such Awards may be included as “compensation” for purposes of
computing the benefits payable to any Participant under the Company’s or any Subsidiary’s or
Affiliate’s retirement plans (both qualified and non-qualified) or welfare benefit plans unless
such other plan expressly provides that such compensation shall be taken into account in computing
a Participant’s benefit.



     20.14 Nonexclusivity of the Plan. The adoption of this Plan shall not be construed as
creating any limitations on the power of the Board or Committee to adopt such other compensation
arrangements as it may deem desirable for any Participant.



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     20.15 No Constraint on Corporate Action. Nothing in this Plan shall be construed to:
(i) limit, impair, or otherwise affect the Company’s or a Subsidiary’s or an Affiliate’s right or
power to make adjustments, reclassifications, reorganizations, or changes of its capital or
business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or
any part of its business or assets; or, (ii) limit the right or power of the Company or a
Subsidiary or an Affiliate to take any action which such entity deems to be necessary or
appropriate.



     20.16 Governing Law. The Plan and each Award Agreement shall be governed by the laws
of the State of Delaware. Unless otherwise provided in the Award Agreement, recipients of an Award
under the Plan are deemed to submit to the exclusive jurisdiction and venue of the federal or state
courts of Arizona, to resolve any and all issues that may arise out of or relate to the Plan or any
related Award Agreement.



     20.17 Indemnification. Each individual who is or shall have been a member of the
Board, or a committee appointed by the Board, or an officer of the Company to whom authority was
delegated in accordance with Article 3, shall be indemnified and held harmless by the Company
against and from any loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by him in connection with or resulting from any claim, action, suit, or proceeding to
which he may be a party or in which he may be involved by reason of any action taken or failure to
act under the Plan and against and from any and all amounts paid by him in settlement thereof, with
the Company’s approval, or paid by him in satisfaction of any judgment in any such action, suit, or
proceeding against him, provided he shall give the Company an opportunity, at its own expense, to
handle and defend the same before he undertakes to handle and defend it on his own behalf, unless
such loss, cost, liability, or expense is a result of his own willful misconduct or except as
expressly provided by statute.



     The foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such individuals may be entitled under the Company’s Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have
to indemnify them or hold them harmless.



     20.18 Amendment to Comply with Applicable Law. It is intended that no Award granted
under this Plan shall be subject to any interest or additional tax under Section 409A of the Code.
In the event Code Section 409A is amended after the date hereof, or regulations or other guidance
is promulgated after the date hereof that would make an Award under the Plan subject to the
provisions of Code Section 409A, then the terms and conditions of this Plan shall be interpreted
and applied, to the extent possible, in a manner to avoid the imposition of the provisions of Code
Section 409A.



 




Amendments in 2008 affect only Section 6.12.




Date effective: June 25, 2008 (date of 2008 Annual Meeting).





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